We began 2021 with a sense of dread. We feared it might be the year the first state legislature moved public notice from newspapers to government websites.
But that didn’t happen.
With only a handful of state legislatures still in session and little chance any of them will pass significant public notice legislation by the end of the year, newspaper notice is still alive and mostly well in every state.
The most likely candidate for first state to fall appeared to be Florida. When a bill that would have moved all public notice in the state to government websites passed the House by a lopsided margin in March, prospects seemed grim. But the Florida Senate amended the bill. By the time H-35 was signed into law less than two months later, it provided a potential roadmap for how it may be possible to keep newspaper notice alive for years to come.
Florida wasn’t the only state that considered legislation that would have eliminated or substantially reduced newspaper notice. Similar bills were introduced in 16 other states in 2021. That is roughly comparable to the 15 states in 2020 where legislation that would have kneecapped newspaper notice was filed. None of the bills survived and few even made it out of committee.
The newspaper industry did suffer a few losses in the public notice wars in 2021. Indiana passed a law amending all existing public notice statutes that require multiple publications in a newspaper, authorizing local governments to post all but the first notice on their own websites. Four other states approved legislation gutting notice requirements for self-storage facility lien sales. But the year ended far better than anyone could have expected. PNRC tracked about 190 different bills that included a public notice component. Aside from H-35 and a couple of other exceptions, the 50 or so bills that passed were vanishingly minor and evenly divided between those that will have a slightly positive impact and those that will be slightly negative.
[[Download spreadsheet listing and analyzing 2021 public notice legislation]]
Another metric we use as a rough proxy for the general health of newspaper notice in state capitals continued a slightly downward trend. The number of bills introduced in 2021 that would add a newspaper notice in a specific category — for instance, in connection with newly mandated public hearings or financial reports — was roughly equal to the number that would have eliminated such a notice. That 1-to-1 ratio was the lowest it’s been since we began measuring it in 2018.
Nevertheless, it was a pretty good year for public notice in the states. To celebrate our good fortune, here is PNRC’s ranking of the five best public notice bills that passed in 2021, in reverse order. Drumroll please.
5. Connecticut HB-6444
HB-6444 was introduced by the Governor’s office to modernize state services. Among other changes, it requires state agencies to post on their websites notices required by statute to be published in a newspaper. Although government websites are insufficient as an exclusive source of primary notice, using them to supplement newspaper notice increases transparency.
4. (Tie) Oklahoma SB-90 and SB-335
SB-90 mandates that affidavits of publication “constitute conclusive proof that the newspaper has published the notice … and shall be incontestable in any court in this state.” SB-335 requires cemeteries seeking to reclaim ownership of burial sites unused for 75 years or more to publish newspaper notice if heirs or beneficiaries of the original owners can’t be identified. Neither law is likely to be frequently invoked but their net impact will be undeniably positive.
3. (Tie) Minnesota HF-9 and Kansas SB-13
Third-place is a tie between two major tax bills that included new notice requirements. Minnesota’s omnibus tax bill, HF-9 included a provision requiring newspaper and government website notice of municipal hearings associated with temporary tax increment financing. Kansas’ SB-13 revised the state’s property tax law. The original version of the bill required only government website notice of public hearings held when political subdivisions consider tax rates that exceed their annual “revenue-neutral rate.” A newspaper notice was added before the bill was signed into law.
2. Wisconsin SB-51
Pursued aggressively by the Wisconsin Newspaper Association (WNA), SB-51 plugs holes in a few smaller municipalities in the state by expanding eligibility for newspapers qualified to publish notices. The new law allows digital subscribers to count towards statutory paid-circulation thresholds, and relaxes requirements relating to publication history and the physical location of newspaper offices. SB-51 also reduces the “news content” threshold from 25 percent to 10 percent; authorizes electronic tear-sheeting; and requires all official newspapers in the state to post notices on their own website as well as WNA’s statewide public notice site. (Publication on the WNA site had already been mandated by statute in 2015.)
1. Florida H-35
Florida’s old public notice law was fine, but if it had to be changed H-35 was the right way to go. H-35 allows government units to publish most notices (not including property-rights notices like foreclosure) on newspaper websites in lieu of their print versions, while also expanding official-newspaper eligibility to free-circulation newspapers and their websites. The law institutes strict circulation and audience-size requirements and adds rigorous disclosure mandates for official newspapers/websites and the Florida Press Association (FPA). Finally, H-35 exempts current public notice newspapers, as well as newspapers in “fiscally constrained counties,” from having to comply with the new circulation and audience-size mandates until Jan. 2024.
The law was designed by sponsor Sen. Ray Rodrigues (R-Fort Myers) to begin the transition to internet notice while expanding competition among the newspapers eligible to provide it. It’s a potential model for other states that are considering similar changes. Kudos to FPA leadership and others in the Sunshine State who played a role in helping convince public officials to pass a law that takes government transparency seriously by maintaining a significant role for newspapers in the provision of public notice.